On July 20, President Joe Biden stood in front of what used to be the coal-powered Brayton Point Power Station in Massachusetts and announced that he would take executive action on climate change. Addressing the issue was a key campaign promise that at first seemed within reach. That is, until Sen. Joe Manchin III, D-W.Va., refused to support Biden’s “Build Back Better” plan, a sprawling budget proposal that called for $1.75 trillion in spending on health care, climate change initiatives and other social benefits.
Following Manchin’s opposition, Biden had decided to take things into his own hands through executive action. But to the surprise of many, Manchin struck a deal with fellow Democrats for a pared-back bill on inflation that preserves some of Biden’s climate proposals. The new bill eliminates the need for Biden to issue an executive order declaring a national emergency on climate change. However, the whole exercise caused confusion on execution action and its limitations.
What is an executive order?
In 1793, President George Washington signed the first executive order that would prosecute anyone who interfered with the war between France and England. The order came out of necessity: Congress was out of session at the time. Circumventing congressional approval allowed Washington to act quickly.
Over time, an executive order became a channel through which presidents can enact policy without having to go through the typical lawmaking process. Even though they aren’t explicitly outlined in the U.S. Constitution, executive orders were born as a result of the second article of the Constitution. Executive orders have the force of law in the sense that they are orders to carry out the president’s executive powers. They also can be described as written directions to government organizations and agencies on how to implement certain laws already enacted.
What limits do executive orders have?
Executive orders may seem like unlimited presidential power, but their authority can be checked. The Supreme Court, along with other courts, can block an order if the judges deem it is not within the president’s constitutional authority.
Other presidents can undo the executive actions of previous ones. For example, on his first day in office, Biden rejoined the Paris Agreement, which former President Donald Trump had withdrawn from in 2020. Yet even here presidential authority is limited. While in office, Trump attempted to terminate the Deferred Action for Childhood Arrivals program — an executive order signed by former President Barack Obama in 2012 that gave permission to immigrants brought to the U.S. as children to stay in the country. The Supreme Court, however, said Trump’s action was “done in an arbitrary and capricious manner. ”
Congress also can challenge executive action by defunding programs and sabotaging legislative agendas. Manchin’s refusal to support Biden’s climate spending package is a prime example of the latter.
How common are executive orders?
Executive orders were actually more common in the past. Before World War II, presidents signed hundreds every year. The president who signed the most executive orders was Franklin D. Roosevelt, with over 3,700 executive orders throughout his record four terms in office. After the war, presidents have signed an average of 59 per year.
In 2022, Biden has published 16 executive orders, totaling 94 in his term thus far. Trump signed 220 during his presidency, following Obama, who signed 276.